Mediation is an alternative dispute resolution method that is often used in divorce and custody cases in New York Family Court. The mediator acts as an impartial third party who facilitates healthy, productive communication in a dispute. It is also completely confidential except when there is child abuse involved or threats are made.
The goal is to help each party gain a greater understanding of the other’s position and to reach agreements that are satisfactory to all involved, if possible. It is often a much more attractive option for resolving divorce issues than an expensive jury trial.
Sometimes a couple will seek mediation at the beginning of the divorce to work out all the issues so that the case proceeds more smoother. Many times, though, mediation becomes necessary because they simply cannot come to an agreement. If your divorce isn’t as agreeable as you would like, mediation may work for you. Here’s what you need to know.
How does mediation work in NY?
When a couple is trying to reach a divorce settlement and decided to go through mediation to do it, the process is often more amiable and they can more easily reach solutions that are mutually agreeable. Both parties and their attorneys come together with a mediator who acts as a neutral third party. The mediator does not make moral judgments against either party or decide who was right or wrong in the past. They do not take sides and remain objective throughout the process.
The parties can be advised by their respective attorneys, but ultimately, they are encouraged to work everything out together. Because of this, many couples find mediation a much better way to get a divorce or at least work out many divorce issues. It can also reduce the length of a divorce, meaning that the people involved can move on with their lives and leave the past behind. It can also mean a quicker resolution to custody, visitation, and child support issues, which calms some of the turmoil and gives the children a little more stability.
Is mediation binding in New York?
The agreements that are made during divorce mediation are typically upheld by New York courts. The only time this would not be the case is if the judge identifies a major issue with the terms. Ultimately, when it comes to certain issues, the court retains jurisdiction. For instance, if a couple comes to an agreement on child custody, it will still be put under scrutiny by the court because the judge must ensure that it is in the best interest of the child. If the court finds that the agreement is not in the best interest of the child, then it will likely not be enforced without revision.
What are a person’s rights when they participate in mediation?
When a person participates in mediation, they have a right to confidentiality. For the most part, the mediator cannot disclose documents used, statements made by either party, or any written materials that were used during the process. However, there are a few exceptions to this:
- If one or both parties make credible threats of immediate, serious harm to each other, themselves, or someone else
- Documents or other information that the court requires to be exchanged and submitted as part of the divorce case
- Allegations of child abuse or neglect
- Any agreement that the parties sign
The parties in mediation have the right to make substantive and procedural decisions that are uncoerced and voluntary. They also have the right to an impartial mediator and to refuse to sign the agreement.
Is mediation required in New York?
The laws regarding mediation as a requirement vary from one county to another in New York State. Some counties require mediation while others allow the parties to decide. Often, a judge will recommend that a couple who is divorcing first go through mediation to work out any issues. This is because successful mediation can help to streamline the divorce process.
How successful is mediation?
Overall, mediation has a very high success rate. More than 85% of all cases that go to mediation get settled. This is partly because the process allows the parties to negotiate the terms of their settlement themselves. They maintain control throughout the process so they can make decisions that are beneficial to them, but at the same time the other party is protected.
Do both parties have to pay for mediation?
There are several options for those seeking mediation for their divorce:
- Court-based mediation programs – Typically, the initial mediation session is free, and any follow-up sessions are reduced fee.
- Community dispute resolution center (CDRC) – Most of the time parenting dispute mediation is free. Other aspects of divorce like debt division, spousal support, and property division are referred to outside divorce mediators on a fee-for-service basis.
- Divorce Mediation Clinic at the Benjamin N. Cardozo School of Law – Qualifying couples who live in the state of New York can get divorce mediation at no cost.
- NYLAG’s Mediation Project – Free mediation for low-income individuals living in New York City and the surrounding area.
- Professional dispute resolution associations – These are private mediators and may be more expensive, but they have the resources and time to work out difficult divorce disputes.
In most cases, both parties are responsible for the cost of mediation, usually splitting it evenly. However, in some cases one spouse may pay more.
Which cases are not appropriate for mediation?
Mediation is not suitable for all divorce or custody cases. Mediation may not be suitable for your divorce if:
- If domestic violence between the parties is present or there is a history of domestic violence in the marriage
- If one or both parties abuse drugs or alcohol
- If child abuse or neglect is present
- If the mediator believes that one or both parties are not competent to make legal decisions, due to the influence of drugs or alcohol, or because one or both of the parties exhibit a mental illness or breakdown
- The mediator believes there is a conflict of interest
- One of the spouses is missing and can’t be contacted
- The mediator believes that one or both parties have been coerced
- If the mediator believes that mediation is not appropriate for the case
Do both parties have to be present at the mediation?
Sometimes the emotions between two people in a divorce are so volatile they can’t even stay in the same room. When this happens, the mediator can place them in different rooms to separate them. Then the mediator can go back and forth between the two.
COVID-19 changed the way we do a lot of things, including handling legal issues. Some mediators will allow one or both parties to attend the mediation over a teleconference or video conference.
Why choose mediation over divorce court?
There are many reasons to choose mediation over divorce court:
- You maintain control of the procedure instead of the Judge
- The discussion is a facilitated conversation instead of an emotionally driven free-for-all
- The cost is typically less than going through divorce court
- You can choose your mediator
- You don’t have to accept the agreement if it doesn’t work for you
- It is faster than divorce court
If you are going through a divorce and think that mediation might be a good option, call the Litvak Law Firm and let us help. Our talented, experienced legal team can help you get the best possible terms in your divorce so that the agreement is good for you. Call today at 718-989-2908 and let’s get started.